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Marine court.

power to

MARINE COURT. 1. The marine court has no power to open or vacate its own judg.

ments, except by regular appeal to its general term, unless such judgment was obtained by default. (Martin agt. Mayor, dc., of

New York, Ante, 86.) 2. The fifth section of the act of 1859, (Laws of 1859, p. 1127,)

authorizing the supervisors of the city and county of New York to raise money by tax, which section gives the comptroller of that city power to apply "to the court" to open judgments against the city rendered by it, but obtained by fraud or collusion, does not give to the marine court any

additional open judgments. (Id.) 6. By filing a transcript of the judgment in the office of the clerk

of the court of common pleas, it becomes a judgment of the latter court. The common pleas, however, has no power to open, reverse, or vacate a judgment thus rendered one of its own; that power only exists in the marine court, and in that court, only

when the judgment was obtained by default. (Id.) 4. The effect of filing a transcript discussed. (Id.) 5. The court will, however, grant a perpetual injunction against

the enforcement of such a judgment on proper grounds, on

motion. (Id.) 6. If there is doubt, the proper way is to enjoin the enforcement of

the judgment, without prejudice to an action on the judgment by the holder thereof, in which action the judgment debtor might

have affirmative equitable relief against the judgment. (Id.) 7. The proper course pointed out, where both the marine court and

the court of common pleas have no power to open a judgment on motion. (Id.)

MARRIAGE SETTLEMENT. 1. An objection to the validity of a marriage settlement, on the

ground that the parties to it were infants, can only be taken by the parties themselves. It is not void, but voidable only, at the option of the infants on arriving at age. (Jones agt. Butler,

Ante, 189.) 2. Much less can a trustee, acting under the trust created by such a settlement, raise such an objection. (Id.)

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Married women.

3. Where a conveyance was made to a trustee, of certain real estate,

which recited that the trustee had determined to invest $5,000 of the trust property in such lands, and which conveyed the land in trust to and for the purposes of the trust, Quere? Whether the trustee can relieve himself from such express trust, by show. ing the consideration for the purchase was never paid out of the

estate. (Id.) 4. It is a proper case for an accounting, where the action is brought

for that purpose, on the ground of a misapplication of the trust

property. (Id.) 5. Where the facts appear in the complaint, the court is to give

such relief as the parties are entitled to, whether asked for or not in the prayer of the complaint, where the defendant has answered. (Id.)

MARRIED WOMEN.

1. An objection to the validity of a marriage settlement, on the

ground that the parties to it were infants, can only be taken by the parties themselves. It is not void, but voidable only, at the option of the infants on arriving at age. (Jones agt. But'er,

Ante, 189.) 2. Much less can a trustee, acting under the trust created by such

a settlement, raise such an objection. '(Id.) 3. Where a married woman signs a promissory note with her hus

band as surety, mere equity, not resting upon any positive contract, will never seize upon her separate estate, and appropriate it to the payment of that debt. (See this case 18 N. Y. R., 265,

and 17 How. Pr. R., 165.) (Yale agt. Dederer, Ante, 242.) 4. Nor can her separate estate be held liable on such a note, upon

the ground that she intended to make it a charge ; because, to make such an intent of any importance, it must be either er. pressed or implied in the terms of the contract. (This decision reverses the judgment of the supreme court in this case on the

second trial. See 19 How. Pr. R., 146.) (Id.) 5. Under our late statutes, (1849 and 1860,) although giving the

legal title and a legal right of disposition, the legislature did not intend to remove the common law disability of married women to bind themselves by their contracts at large. To be obligatory on them or their estates under the late statute, their contracts

Married women.

must relate directly to their separate property, or to the particu

lar trade or business in which they are engaged. (Id.) 6. Where a married woman, (since March, 1860) upon her sole

credit and responsibility, and for her sole benefit, carried on the saloon business in a part of the house occupied by her and her husband as a residence, and, among other things, sold strong and spirituous liquors without license, with the knowledge and without the assent of her husband, held that the husband was liable for the penalties given by the act of 1857, § 13. (Commissioners of Ercise agt. Keller, Ante, 280.)

See ARREST. (Wheeler agt. Hartwell, 4 Bosw., 684.) 7. Where a married woman brings an action for fraudulent repre

sentations in the purchase of worthless stock, and for which she conveyed lands belonging to her separato estate, it is properly brought by her alone, without joining her husband. (Newbery

agt. Garland, 32 Barb., 121.) 8. Where a party, through fraud and deceit of another, was induced

to convey lands for worthless stock, he can maintain an action for the damages, without rescinding the contract or restoring the

stock. (Id.). 9. Where an action to recover damages for fraud and deceit through

false representations, made by an agent of the defendant, and to enforce a lien on the land conveyed by the plaintiff and received by the defendant, the principal, it is not necessary to make the

agent a party. (Id.) 10. Where the disability of the plaintiff, a married woman, does

not appear upon the face of the complaint, the defendant cannot avail himself of the defence of coverture, unless he sets it up in

his answer. (Dillaye agt. Parks, 32 Barb., 132.) 11. Where a promissory note, is indorsed over by the payee to a

married woman the note not proceeding from her husband, the property in the note vests by law in her, and constitutes it her

separate estate. (Id.) 12. Where å lease for a term of years is executed to the husband

and wife jointly, the rights and interests of the lessees, are unaffected by the married women acts of 1848-9. Those acts were not intended to authorize married women to take and hold property jointly with their husbands. Therefore the wife cannot be deemed to have intended to charge her separate estate by the

Metropolitan police.

covenant for payment of rent. Such covenant is applicable to

the husband only. (Goelet agt. Gori, 32 Barb., 314.) 13. Where a plaintiff is entitled to the relief demanded as against the

property of a married woman, it is proper to join the husband as defendant with her. And when thus joined he cannot demur ou the ground that the complaint contains no cause of action against

him. (Id.) 14. A married woman, under the acts of 1848-9, can execute a

valid conveyance of her real estate, to her husband, which will bind her heirs. If not valid at law it would be good in equity. (Winans agt. Peebles, 32 Barb., 371.)

See PRINCIPAL AND AGENT. (Brouer agt. Vandenburgh, 32 Barb., 648.)

METROPOLITAN POLICE.

1. The Metropolitan Police Act, which provides that "no person

holding office under this act shall be liable to military duty, por to arrest on civil process, or to service of subpoenas from civil courts, while actually on duty," applies only to persons while actually on duty, except, that the section confers an absolute unlimited exemption from military and jury duty, and a limited exemption "while actually on duty," in the other cases. (Squire's Case, 12 Abb., 38.)

MORTGAGE FORECLOSURE.

1. Where the plaintiffs were purchasers of premises at sheriff's

sale, by assignment of the sheriff's certificate, and also held the title to the same by a conveyance, subject to a mortgage given by the grantor which was junior in lien to the judgment upon which the premises were sold, and were in possession,

Held, that the plaintiffs were not entitled to an injunction to restrain and stay the foreclosure and sale of the premises under the mortgage, before the expiration of the time of redemption upon the sale under the judgment. (New York Shot and Lead

Co. agt. Cary, Ante, 444.) 2. That is, whatever estate or interest remained intermediate the

judgment of foreclosure and the time when the purchase under the judgment at sheriff's sale, would become perfect, belonged

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to the mortgagee, and he had a right to require that the premises

should be sold for the purpose of discharging his lien. (Id.) 3. In cases of mortgage foreclosure, the complaint must ask for a judgment for the deficiency, if any shall exist after the sale, against a purchaser of the land, or an assignor or guarantor of the mortgage-who may be liable for the debt, in order to authorize the court to render such a judgment, where such defendants

have not answered. (Simonson agt. Blake, Ante, 484.) 4. A judgment for deficiency thus unauthorized, entered against a

defendant, does not come within the statute limitation of one year, for a motion to set it aside as irregular. It is not merely

irregular; it is void. (Id.) 5. If the notice of foreclosure of a mortgage by advertisement spe

cifies the place where the mortgage is recorded, by stating the clerk's office and the date of record, it is sufficient, though the number of the book in which it is recorded is erroneously stated.

(Judd agt. O'Brien, 21 N. Y. R., 186.) 6. But it is essential that such notice should declare that the mort.

gage will be foreclosed by sale. (Id.) 7. As to a defence or counter claim attempted to be interposed by

a purchaser, see National Fire Ins. Co. agt. McKay. (ld., 191.) 8. Tender of the money due upon a mortgage, at any time before

foreclosure, discharges the lien, although made after the law day, and the tender not brought into court nor kept good. (Kort

right agt. Cady, 21 N. Y. R., 343.) 9. An assignee of the rents of mortgaged premises for a valuable

consideration, before any default in payment of the mortgage debt, and before insolvency of the mortgagor, will be first protected on a foreclosure of the mortgaged premises, which rurns out to be an inadequate security for the mortgage debt. (Syra

cuse City Bank agt. Tallman, 32 Barb., 201.) 10. Unless there is a special clause in the mortgage to that effect, the mortgagee has no lien

upon the rents and profits of the mortgaged premises, and as a general rule the mortgagor is entitled to possession until the sale ; when courts of equity will interfere

for the protection of the mortgagee. (Id.) 11. Where the condition of a mortgage was that the mortgagor

“the just and full sum of all moneys” which he might owe to the mortgagees, “either as maker or indorser of

should pay

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